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TMI Blog2009 (11) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... in the assessable value of the goods. The extended period of limitation was invoked by the department alleging that the assessee had willfully suppressed the non-inclusion of the above expenses in the assessable value of the goods, with intent to evade payment of duty. On the same ground, the first show-cause notice proposed to impose penalty on the assessee under Section 11AC of the Act, and/or Rule 173Q of Central Excise Rules, 1944. The second show-cause notice also invoked both the penal provisions, though it did not invoke the extended period of limitation. This notice demanded duty for the normal period. The proposals were contested. In adjudication of the dispute, the original authority confirmed against the assessee the demands of duty and penalties were imposed on them. Aggrieved by the same, the assessee preferred appeals to the Commissioner (Appeals) and the latter allowed the same. Hence, the present appeals of the Revenue. 2. When the case was heard by the regular Bench, in the first instance, the valuation issue was debated with reference to the Hon'ble Supreme Court's judgment in Indian Oxygen Ltd. v. CCE, 1988 (36) E.L.T. 723 (S.C.). The rival arguments put forth b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, does not include in the invoice price charged by the Noticee". The learned Counsel has also referred to the relevant findings recorded in the orders of adjudication. For instance, one of the orders-in-original observed thus : "these loading charges paid by way of Hamali charges are negotiated by the transporter with the Hamal society and paid directly to Hamals. Such charges are thereafter recovered by the transporter from the customers". The learned Counsel has also invited our attention to the relevant finding contained in the impugned order, which reads thus : "Since the appellants have not collected anything from the buyers, the allegation in the show-cause notice that the loading charges incurred on the Hamals by the transporter on behalf of the buyers/distributors cannot be aided in the assessable value though the goods have been loaded in the factory premises". The learned Counsel has also taken advantage of one of the grounds raised by the Revenue, which reads thus : "the issue involved in the present case is whether the cost of loading incurred within the factory by the buyer of the goods is required to be added to the value". As rightly pointed out by the counsel, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Counsel has referred to the Tribunal's decision in the case of Albright & Wilson Chemicals India Ltd. v. CCE - 2007 (214) E.L.T. 313 (Tri.-Mum.), Popular Gases v. CCE, Calicut - 2006 (205) E.L.T. 472 and Southern Power Equipment Co. Pvt. Ltd. v. CCE, Bangalore-III - 2007 (214) E.L.T. 533. It is submitted that the legal position expounded by the Tribunal from time-to-time was in favour of the assessee in the present case and, therefore, it was justifiable for them to maintain a bona fide belief that the aforesaid expenses were not to be included in the assessable value of the goods. It is also pointed out that the very issue came to be raised before a Larger Bench of this Tribunal. The Larger Bench's decision only could erase the doubt from the mind of the respondent. In this scenario, according to the learned Counsel, any duty for the extended period of limitation could not be demanded from the respondent on the ground of suppression of facts. The assessee never had any intention to evade payment of duly. 5. In support of the above submissions, the learned Counsel has also relied on the Supreme Court's judgments in Continental Foundation Jt. Venture v. CCE, Chandigarh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, they had no liability to file any declaration of price. According to the learned Counsel, the only obligation was to declare their marketing pattern, discount structure, etc., under sub-rule (3A) of the Rule. 8. We have considered these submissions also. Under Rule 173C (1), as these provisions stood during the material period, every assessee, who manufactured excisable goods should declare its value under Section 4 of the Act, in sales invoices, invoice-cum-challan or like documents used by them for sale or removal of goods and such documents should indicate separately the value of goods and the duty paid in terms of Section 12A of the Act. Such documents should also contain a declaration of the price. The learned SDR has relied on these provisions. On the other hand, in respect of certain specified categories of assessees, there was a requirement of filing with the proper officer, a declaration in the prescribed format declaring the value of the goods under Section 4 of the Act, the duty and other elements constituting price of such goods. The question which we have considered in this case pertains to includability or otherwise of loading charges within the facto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le goods without payment of duty is a removal in contravention of provisions of Central Excise Rules. On the same reasoning, removal of excisable goods on short-payment of duty is also in contravention of the law. To this extent, the conduct of the respondent would attract sub-rule (1) of Rule 173Q, but their penal liability would be circumscribed by provisions of limitation. In other words, insofar as the normal period of limitation is concerned, the assessee by short-paying duty on their products invited the penal provisions of Rule 173Q. Under these provisions, a penalty can be imposed in appropriate case up to the amount of duty. However, the amount of duty for the normal period remains to be quantified and, therefore, the amount of penalty to be imposed on the assessee under Rule 173Q is also determinable at that stage. Accordingly, after holding the assessee liable to pay duty (with interest in accordance with law) for the normal period of limitation, we direct the original authority to quantify the duty as also to determine the amount of penalty, which could be imposed on them, in the facts and circumstances of this case. The adjudicating authority shall pass a speaking orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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